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[2015] ZAGPPHC 443
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Viva Engineering Projects CC and Another v Minister of Water Affairs and Others (64340/13) [2015] ZAGPPHC 443 (5 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 64340/13
DATE:
5 JUNE 2015
In
the matter between:
VIVA
ENGINEERING PROJECT
CC
..........................................................................
First
Applicant
VIVA
ENGINEERING
PROJECT
.............................................................................
Second
Applicant
CC
AND CORRO-WEAR JOINT VENTURE
And
MINISTER
OF WATER
AFFAIRS
.............................................................................
First
Respondent
MRS
Z MATHE
NO
.................................................................................................
Second
Respondent
METHABICA
CONSULTING
..................................................................................
Third
Respondent
STELENBOSCH
NACO
..........................................................................................
Fourth
Respondent
BELTA
SERVICES
......................................................................................................
Fifth
Respondent
PRO-ELECTRO
SERVICES
.........................................................................................
Six
Respondent
JUDGMENT
(1)
This is an application for leave to appeal against the
order that I made on 17 March 2015.
(2)
The application for leave to appeal was brought to my
attention about two weeks ago. I immediately requested the registrar
to facilitate
the hearing of this application.
(3)
The applicants raised eleven grounds for leave to
appeal. These grounds are set out in the applicant’s notice of
application
for leave to appeal, which I find unnecessary to repeat.
(4)
The applicants argued that an unsuccessful bidder has
locus standi simply by virtue of its having submitted a bid. This
submission
was made in respect of my finding that the second
applicant lacked locus standi. It must be borne in mind that the
issue of standing
is divorced from the substance of the case. Thus, I
had to decide this issue on the assumption that the seconds
defendant’s
challenge was justified. I found that the second
applicant, ie Viva and Corro-Wear, in their capacity as partners or
associates
in a joint-venture, did not have a standing because the
alleged joint-venture never existed for the reasons set out in my
judgment.
A non-existent entity does not have any standing, let alone
constitutional rights and I am not aware of any authority proclaiming
that each constituent member of an alleged entity with locus standi
is rendered with legal standing by a finding that the entity
has
never existed. I am of the opinion that there is no reasonable
prospect that my finding in this regard would be overturned
on
appeal.
The
applicants further argued that my finding of an absence of irregular
conduct in the first phase did not dispose of the whole
case. If
there was no irregularity committed in the administrative phase, then
the question is whether a bidder who was duly disqualified
in the
first phase has any locus standi to challenge a decision made in any
subsequent phase. Counsel submitted that such a disqualified
bidder
does have that right. I could not find any reported judgment dealing
with locus standi in the context of a phased evaluation
bidding
process.
If the broader principles of constitutional own-interest standing as
set out in Giant Concerts CC v Renafdo Investments
(Pty) Ltd and
others
2013 (3) BCLR 251
(CC) are applied to the facts of this case,
I have difficulty to see how a decision taken in any subsequent phase
can directly
affect the said bidder’s rights or interests or
potential rights or interests, or how such an interest can be real
and not
merely hypothetical or academic or on what basis such a
person is entitled to claim the court’s time and put the
opposing
party to trouble. Even from a purely pragmatic point of
view, it would make no sense to grant such a bidder the opportunity
to
contest a decision made in any subsequent phase. In the light
hereof, I am of the view that there is no reasonable prospect that
another court would find that a duly disqualified bidder in a phased
evaluation bidding process has locus standi to challenge any
decision
in any subsequent phase.
(6)
Regarding the applicant’s grounds relating to
SDB9, the following: I found that the purpose of SDB9 was to prevent
any form
of bid rigging, which included collusive dealings between
constituent firms and the prevention of more than one (alternative)
bid
per bidder with a view to preventing any form of bid rigging. It
is true that the terms of SDB9 had a wider scope than the Competition
Act, but in my opinion there is no reasonable prospect that another
court would find that the terms were unreasonable, immaterial
or
unconstitutional or that the Committee was entitled to ignore them or
that the terms were the cause of any form of unfair treatment
for the
reasons set out in my judgment.
(7)
Regarding the remaining grounds for leave to appeal and
mindful of the factual findings and my reasons contained in my
judgment,
I am likewise of the opinion that the appeal would have no
reasonable prospect of success.
(8)
I therefor make the following order:
1. The
application for leave to appeal is dismissed with costs, including
costs of senior counsel.
AB
R
OSSOUWA J
DATE:
05/06/2015
DATE
OF HEARING: 3 JUNE 2015 DATE OF JUDGMENT: 5 JUNE 2015
FOR
THE FIRST AND SECOND APPLICANTS:
ADVOCATES:
MM SNYMAN (With him ND DE LANGE) ATTORNEYS: NORTON ROSE FULBRIGHT
(INCORPORATED AS DENEYS REITZ INC), UMHLANGA C/O MARITZ
SMITH VAN
EEDEN INC, PRETORIA
FOR
THE FIRST AND SECOND RESPONDENTS.
ADVOCATE:
Z Z MATEBESE
ATTORNEYS:
THE STATE ATTORNEY, PRETORIA
FOR
THE THIRD RESPONDENT: NO APPEARANCE
FOR
THE FIFTH RESPONDENT: ADVOCATE: A G SOUTH MACROBERT INC, PRETORIA